102 F.4th 60
2d Cir.2024Background
- Between Aug 2011 and Jan 2012 Barrett and confederates carried out multiple armed Hobbs Act robberies; on Dec. 12, 2011 a robbery of cigarette-sale proceeds resulted in co‑defendant Dore shooting and killing victim Gamar Dafalla. Barrett helped follow the van, participated in other robberies that day, and aided in disposing of the gun.
- Superseding indictment charged conspiracy (Count 1), multiple substantive Hobbs Act robberies (Counts 3,5), § 924(c) firearm offenses (Counts 2,4,6), and § 924(j) murder for death caused by firearms (Count 7); jury convicted Barrett on all counts.
- On initial appeal and certiorari the case proceeded through Barrett I and then the Supreme Court’s decision in Davis; on remand Barrett II vacated Count 2 (§ 924(c) conspiracy) and directed resentencing; the district court resentenced Barrett in 2021 to 50 years (amended judgment).
- Barrett appeals the amended judgment, arguing: (1) appellate counsel was ineffective for not challenging sufficiency on Count 5 (substantive robbery); (2) substantive Hobbs Act robbery cannot categorically be a "crime of violence" after Taylor; (3) procedural sentencing errors (misapplied U.S.S.G. § 2A1.1 and mistakenly treating § 924(j) as mandating a consecutive § 924(c) sentence); and (4) the 50‑year term is substantively unreasonable.
- This panel affirms convictions and the Guidelines calculation but holds the district court erred in treating § 924(j) as mandating § 924(c)’s minimums/consecutive sentence in light of Lora; vacates and remands for limited resentencing under Lora, directing separate sentencing under § 924(c) (Count 6) and § 924(j) (Count 7).
Issues
| Issue | Plaintiff's Argument (Barrett) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| 1. Ineffective assistance of appellate counsel for not raising sufficiency re Count 5 (substantive Hobbs robbery) | Counsel should have argued evidence proved only attempted robbery (insufficient taking), which would undermine Counts 5–7 | Appellate counsel pursued stronger, successful issues (e.g., Davis challenge); sufficiency claim was weak because evidence supported a taking and general intent | Counsel not ineffective under Strickland; sufficiency claim was not obviously stronger and would likely fail |
| 2. Whether substantive Hobbs Act robbery is a categorical "crime of violence" post‑Taylor | Taylor undermines precedent; attempted Hobbs is not a crime of violence, so substantive Hobbs may also fail categorical test | Precedent holds completed Hobbs Act robbery is categorically a crime of violence; McCoy controls in this Circuit | Substantive Hobbs Act robbery remains a categorical crime of violence; conviction on Counts 4,6,7 affirmed |
| 3. Procedural sentencing errors: (a) Guidelines § 2A1.1 application; (b) § 924(j) treated as incorporating § 924(c) mandatory minimums and consecutive requirement | (a) § 2A1.1 misapplied; should use robbery guideline; (b) § 924(j) does not carry § 924(c) mandatory/consecutive penalties | (a) Statutory Index directs use of § 2A1.1 for § 924(j); (b) earlier precedents had justified applying § 924(c) mandates to § 924(j) | (a) § 2A1.1 application was correct; (b) Lora requires that § 924(j) not import § 924(c)’s penalty mandates — remand for resentencing limited to correcting that error |
| 4. Substantive reasonableness of 50‑year sentence | 50 years is excessive given rehabilitation and disparities with co‑defendants | Sentence justified by brutality, recidivism, and murder; district court reasonably weighed mitigating factors | 50‑year below‑Guidelines sentence is not substantively unreasonable; affirmed except for Lora error requiring resentencing |
Key Cases Cited
- United States v. Barrett, 903 F.3d 166 (2d Cir. 2018) (Barrett I — affirmed convictions on initial appeal)
- United States v. Barrett, 937 F.3d 126 (2d Cir. 2019) (Barrett II — vacated Count Two under Davis and remanded; earlier view that § 924(j) imports § 924(c) mandates)
- Lora v. United States, 599 U.S. 453 (2023) (Supreme Court: § 924(j) references § 924(c) for elements only, not penalties; § 924(j) penalties are flexible and need not be consecutive)
- United States v. Taylor, 596 U.S. 845 (2022) (Supreme Court: attempted Hobbs Act robbery is not a categorical crime of violence)
- United States v. Davis, 139 S. Ct. 2319 (2019) (Supreme Court: § 924(c)(3)(B) residual clause is void for vagueness; prompted remands)
- United States v. McCoy, 58 F.4th 72 (2d Cir. 2023) (holding completed Hobbs Act robbery remains a § 924(c)(3)(A) categorical crime of violence)
- Strickland v. Washington, 466 U.S. 668 (1984) (constitutional standard for ineffective assistance of counsel)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)
- United States v. Gonzales, 520 U.S. 1 (1997) (construing § 924(c)’s language to require consecutive sentences to any other term of imprisonment)